Corrupt Officer Not A Good Enough Reason For Appellate Relief

Defendant not entitled to a third stage evidentiary hearing even though a notoriously corrupt detective handled the witness identifications in his case.

Facts

Defendant was convicted of murder based on eyewitness testimony. Two witnesses “confidently and independently” identified petitioner one to two days after the shooting. Each made multiple identifications of petitioner after having “multiple opportunities to observe the face of the shooter from just a few feet away,” and gave a description of the shooter that described the petitioner.

The Witnesses

Although there were differences, “their testimonies were corroborated in several ways.”

Defense counsel at trial “made sure the jury was aware of the discrepancies between the eyewitnesses’ testimonies and various police reports, the purported suggestiveness of the photographic and lineup identifications, and the fact one eyewitness had been drinking before the shooting.”

Finally, we concluded that “given the fact that an eyewitness reliably testified that Gonzalez was the shooter and that one of the victim's corroborated most of the details of her testimony, the evidence against petitioner was not closely balanced.”

Two witnesses “confidently and independently” identified petitioner one to two days after the shooting.

Each made multiple identifications of petitioner after having multiple opportunities to observe the face of the shooter from just a few feet away, and gave a description of the shooter that described the petitioner.

Although there were differences, their testimonies were corroborated in several ways. Defense counsel “made sure the jury was aware of the discrepancies between the eyewitnesses’ testimonies and various police reports, the purported suggestiveness of the photographic and lineup identifications, and the fact one witness had been drinking before the shooting.

The Postconviction Petition

Defendant then filed a postconviction petition after he had learned the detective on his case had gotten into some trouble.

He read a news report of a federal wrongful conviction case won by another defendant against the City of Chicago involving witness intimidation by the same Chicago police DetectiveReynaldo Guevara.

Through counsel, Gonzalez filed an amended postconviction petition, alleging that he was deprived of his due process rights because newly discovered evidence of his actual innocence demonstrated Guevara engaged in a pattern and practice of framing suspects by orchestrating false identifications, and that the State failed to tender exculpatory evidence of Guevara’s complaint history prior to Gonzalez’s retrial in 2003 in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Defendant attached documents relating to other cases alleging misconduct by Guevara and a photocopy of the six head shot photographic array that Guevara showed a witness. Notably, the amended petition and attached exhibits did not include any affidavits from the two witnesses or any other person involved in the investigation or trial that resulted in petitioner’s conviction. The reviewing court dismissed the petition at the second stage.

Problems With The Petition

Granted, defendant’s petition did have some problems. Gonzalez’s amended petition contained numerous affidavits from individuals who were not involved in any way with this particular case and numerous transcripts of testimony from other hearings and trials, again not related to this case.

The record filed in this court contains seven volumes of the appendixes attached to Gonzalez’s amended postconviction petition.

This voluminous record establishes exactly what postconviction counsel intended for it to establish–a pattern of pervasive misconduct on the part of Detective Guevara–yet it is completely devoid of any verified allegations capable of objective or independent corroboration that either of the two primary witnesses in petitioner’s case were improperly influenced by Guevara sufficient to warrant a third-stage evidentiary hearing under the Act.

Gonzalez points out, and the reviewing court acknowledged, that as criminal cases in Cook County involving Guevara have been gradually coming to light, he has begun to invoke his fifth amendment privilege against self-incrimination in various criminal and civil litigation matters.

For postconviction analysis purposes, after reviewing Gonzalez’s appendix there is little doubt that Guevara was engaged in a pattern of improperly influencing witness identifications.

No Constitutional Violation

However, at the second stage, the petitioner bears the burden of making a substantial showing of a constitutional violation.

He has failed to make a substantial showing of a constitutional violation.

This proffered evidence is immaterial, it does not support a claim of actual innocence and it would not have any bearing on this result on retrial in the absence of evidence that Guevara engaged in similar misconduct in this case.

Significantly, Gonzalez has not submitted any affidavits, or any other evidence for that matter, with his amended petition showing that Guevara engaged in any wrongdoing in this particular case.

Not How It Works

In fact, postconviction counsel acknowledges the absence of such evidence but argues that petitioner’s case should advance to a third-stage evidentiary hearing in order to access the subpoena power available at the third stage to embark on a search for unknown and unidentifiable evidence that might tend to show that Guevara engaged in any wrongdoing in this case.

That is not how the Post-Conviction Hearing Act works. Without an affidavit, record or other supporting evidence of misconduct related to a witness in this case, historical “hallmark features” of Guevara’s misconduct are insufficient.

Generalized Claims Insufficient

Here, one victim changed her description of the shooter after being interviewed by the detective, and the array shone to the other witness featured a suggestive marking (petitioner’s photo was the only one of six that showed a man holding a placard with an arrest number on it and had a white background.)

Generalized claims of misconduct alleged by petitioner, without any link to petitioner’s case, i.e. some evidence corroborating petitioner’s allegations, or some similarity between the type of misconduct alleged by petitioner and that presented by the evidence of other cases of abuse, are insufficient to support a claim of coercion.

Holding

The court said without any evidence whatsoever that any witness against Gonzalez was improperly influenced by Guevara, it could only find that the circuit court properly dismissed Gonzalez’s actual innocence claim at the second stage.

Guevara’s misconduct in other cases is not relevant in this case where there are absolutely no allegations or evidence of coercion, improper influence or manipulation of any witness or in the investigation that produced the identification testimony at trial.

Dismissal of the petition at the second stage was affirmed.

Dissent

See the dissent which wrote that there is more than enough here to reverse the trial court’s dismissal of Gonzalez’s amended post-conviction petition at the second stage, and to order a third-stage evidentiary hearing. One need not see flames to know that there has been a fire.

Evaluation of Gonzalez’s petition must be conducted in the context of other specific instances of Guevara’s alleged professional misconduct during investigations.

Without an evidentiary hearing to explore Dorsch’s statements and subpoena Guevara, I believe this court runs the real risk of dooming a possibly innocent man and damaging public trust and confidence in the legal system by rationalizing away a hearing on the extent of Guevara’s activities in this case.

This court has been repeatedly called on to review postconviction petitions in cases involving Chicago Police Department officers accused of misconduct in the course of criminal investigations.

Only the “truth-finding” purpose of a third-stage evidentiary hearing can help to negate this awful legacy as it has done for others in situations similar to that of Gonzalez. The trial judge at a third-stage evidentiary hearing determines the credibility of witnesses, decides the weight to be given testimony and evidence, and resolves any evidentiary conflicts. The factual record requires the granting of a third-stage hearing. So does the law. And, so does the credibility of the criminal justice system.